Legislature(2003 - 2004)
02/12/2004 03:35 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 230(STA)-POLITICAL SIGNS ON PRIVATE PROPERTY
CHAIR GARY STEVENS announced CSHB 230(STA) to be up for
consideration. The bill relates to political signs on private
property. He stated he did not intend to move the bill that day.
He asked Mr. Larkin to step forward and introduce the bill.
TODD LARKIN, staff to Representative Jim Holm, described the
legislation as follows:
HB 230, we brought it forward because we thought it
was an issue of free speech that the state had
overlooked in its zeal to keep the federal government
happy and comply with what it thought were federal
requirements. We've talked to the Federal Highway
Administration and we found that we didn't necessarily
have to make all the restrictions we were making.
MR. LARKIN read the following from the sponsor statement:
The ability of citizens to express political opinion,
even to advocate for the same, is a fundamental right.
This basic right becomes even more pronounced when the
expression is made on one's own private property.
Currently, state law prohibits the posting of campaign
or political signs within road view or 660 feet
(whichever is greater). This applies to federally
funded roads and state roads. The restriction includes
private property. If you or I were to erect a "NO WAR
IN IRAQ" or "SUPPORT THE TROOPS" sign today within the
distance limits, we would be in violation of state
law. The reasoning for this restriction has its
genesis in the Federal Highway Beautification Act of
'65. It has been interpreted to say that without a
sign restriction, political or otherwise, Alaska may
lose federal highway funds for being out of
compliance. Correspondence with the Federal Highway
Administration on this subject shows this to be
untrue.
Similar restrictions, contained in city/county
ordinance or state law, have been struck down in three
out of four state supreme courts: Washington, Oregon,
Colorado, and California. A U.S. district court in
Missouri found in '93 that very few restrictions could
be placed on signage erected on private property. The
U.S. Supreme court heard a case in '94 concerning
private property and upheld the rights of the property
owner. Further, there is a landslide of peripheral
case law relating to this subject. If AS 19.25.105
stands as currently written, the state of Alaska is in
danger of litigation and certain defeat.
We have a country, which is based on the premise that
all powers reside in the people and that the
government derives its authority from the consent of
the governed. Hence, we the people have the right to
advocate or choose who governs us. This right should
have little or no restriction.
This law needs to be amended, first to save the time
and expense to the individual citizen who must
challenge the current restriction of free speech, and
second to save the state the cost of defense plus the
likely legal fees awarded to a victorious citizen.
MR. LARKIN stated that the sponsor had no objection to the two
proposed amendments. Federal highways recommended the amendment
to tightly define the intent of the statement "political
noncommercial sign" so it wouldn't allow indirect commercial
advertising. Department of Transportation asked that it be clear
in statute that they retain all authority in rights of way and
department easements. The bill covers the land from the edge of
that line out to 660 feet.
SENATOR COWDERY asked if the state is currently out of
compliance and has any federal funding been lost.
MR. LARKIN replied the state has not lost any funding. The one
state that did lose funding had the money refunded once they
became compliant and it wasn't related to this issue.
SENATOR COWDERY asked if there is a size limitation and used an
Acme fence sign as an example.
MR. LARKIN replied he would defer to the Department of
Transportation and Public Facilities (DOT/PF), but current
statutes deal with that type of example. This issue is something
new.
CHAIR GARY STEVENS noted Nona Wilson from DOT/PF was present to
answer questions.
SENATOR COWDERY remarked DOT/PF expended little enforcement
effort in the last governor's election, but there have always
been games associated with the placement of political signs. He
asked what provisions there would be for enforcement and would
four small grouped signs be the same as one large sign.
MR. LARKIN reported that one of the first restrictions they set
on the new exception to the 660-foot rule is addressed on page
2, line 15-16. It says, "individual or conjoined signs do not
exceed 32 square feet total per side;"
SENATOR COWDERY announced he places his political signs on each
of his driveways. One sign is placed so that traffic flowing out
of Anchorage can view it and the other is placed to accommodate
incoming traffic. He asked if this would be illegal since he
owns two lots or is it a grey area.
MR. LARKIN called political signs a super protected form of
speech. This legislation makes it clear that you may not be on
the land that DOT/FP controls, but if you're on your private
property from the line where DOT/FP control stops out to the 660
foot beautification margin, his reading and the intent is that
the signs are legal.
SENATOR COWDERY then said he would like to have a site
identified.
CHAIR GARY STEVENS labeled the proposed amendment \U.3,
amendment number 1 and the proposed amendment \U.1, amendment
number 2 then asked Mr. Larkin to explain amendment number 1.
23-LS0780\U.3
Utermohle
10/7/04
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSHB 230(STA)
Page 2, line 18, following "hazard;":
Insert
"(C) the signs are located outside of
department easements;"
Page 2, line 19:
Delete "(C)"
Insert "(D)"
23-LS0780\U.1
Utermohle
10/7/04
A M E N D M E N T 2
OFFERED IN THE SENATE
TO: CSHB 230(STA)
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of Alaska is
amended by adding a new section to read:
INTENT. It is the intent of the Alaska State Legislature
that political signs on private property not pose an opportunity
for indirect commercial advertising."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
MR. LARKIN replied, "The original suggestion from DOT was to say
that all of this occurs outside of [the] right-of-way or
department easements." He continued to say that AS 19.25.105(a)
speaks to outside the right-of-way and they are expanding the
language slightly to include easements in an effort to clear any
ambiguity regarding easement versus right-of-way because "DOT
uses their easements in the exact same fashion."
SENATOR HOFFMAN made a point of clarification saying, "DOT has
the right-of-way. They don't own it we own it; the state owns it
so we decide what happens there."
MR. LARKIN agreed that Senator Hoffman is correct.
SENATOR COWDERY touched on signs placed in windows in
subdivisions to emphasize the point that enforcement might be
difficult.
MR. LARKIN noted he included a number of court cases on this
detail in the packets. He assured members that there wouldn't be
ambiguity when referring to the precedents.
SENATOR HOFFMAN asked whether the two proposed amendments might
not open the door to legal challenges.
MR. LARKIN replied his office holds the opinion that the State
of Alaska and DOT does not and, even with the amendments, will
not have the constitutional authority to restrict that specific
form of speech.
CHAIR GARY STEVENS asked Senator Guess if she had any questions.
SENATOR GRETCHEN GUESS, attending via teleconference, thanked
him for checking and said she had no questions at that time.
5:00 pm
NONA WILSON, legislative liaison with DOT/PF, prefaced her
testimony by saying Rick Kauzlarich who handles all rights-of-
way and easement issues was in Anchorage and although she would
try to answer all questions, she was not an expert.
CHAIR GARY STEVENS asked if the proposed amendments came from
the department.
MS. WILSON advised that the department reviewed HB 230
thoroughly and requested including amendment number 1, 23-
LS078\U.3, to make a clear line of demarcation where private
property stops and the DOT easement or right-of-way starts and
who has the say when you have a political sign. She suggested,
"This is mostly just a housekeeping point."
CHAIR GARY STEVENS asked for verification that even though it is
private property, the intention is that no signs are allowed on
the department easement.
MS. WILSON confessed it gets fuzzy for her at this point, so she
used Mr. Kauzlarich's example.
Say you're going down Egan Expressway...and it comes
up that we [DOT] need to build a sidewalk. It just so
happens that someone's private property abuts right
where we want to build. So, I believe, an easement in
an agreement between the private property owner and
say the Department of Transportation that says okay,
you can have this ten feet of my private property to
have a sidewalk on it. When that happens, DOT assumes
the authority over that ten feet and everything behind
it is up to the private property owner.
MS. WILSON said she asked Mr. Kauzlarich whether the property
owner could place a sign just beyond the sidewalk and was told
the property owner could do that. She admitted she didn't know
how many signs would be allowed or the size requirements either.
TAPE 04-6, SIDE A
5:10 pm
SENATOR COWDERY said his comment about signs in windows stemmed
from the fact that federal funds might be used on roads in front
of a house with a sign in the window.
MS. WILSON said she hasn't considered that problem since his
question was the first to raise that point.
SENATOR COWDERY followed up to ask about whether this has
anything to do with utility easements that are not owned by DOT.
MS. WILSON didn't care to speculate, but agreed to get an answer
for him.
SENATOR COWDERY noted that the property owner pays taxes on a
utility easement, but they can't use that portion of the
property.
MS. WILSON said that would be a municipal issue.
SENATOR BERT STEDMAN asked if he heard her say that the state
would have more authority over an easement than a municipality
would have.
MS. WILSON understood that when an easement is granted, the
party that is granted the easement has control of that portion
of the property. "If DOT had an easement with the utility, that
chunk of land would be under DOT's control. That wouldn't say
that it would keep maintenance operators and maybe the
municipality from going on there and doing their work..." She
continued to say that there might by an exception for utilities.
SENATOR STEDMAN said that is a point to clarify and he would
appreciate knowing a bit more about the rights granted on the
issuance of an easement.
MS. WILSON admitted that was a good question and she would talk
to Mr. Kauzlarich.
CHAIR GARY STEVENS announced that even though he didn't intend
to move the bill then, he would like to adopt amendment 1
because it offers some clarification.
SENATOR HOFFMAN raised the question of whether or not
"department" is defined in the statute.
MR. LARKIN conceded he was wondering whether the amendment
should specify the Department of Transportation.
CHAIR GARY STEVENS thought that was an important clarification
and asked for a motion.
SENATOR COWDERY said he would move the amendment.
CHAIR GARY STEVENS said that would be as amended, which is, "the
signs are located outside of Department of Transportation
easements;"
23-LS0780\U.3
Utermohle
10/7/04
A M E N D M E N T 1
[AS AMENDED BY SENATE STATE AFFAIRS COMMITTEE]
OFFERED IN THE SENATE
TO: CSHB 230(STA)
Page 2, line 18, following "hazard;":
Insert
"(C) the signs are located outside of
Department of Transportation easements;"
Page 2, line 19:
Delete "(C)"
Insert "(D)"
MS. WILSON agreed with the wording.
CHAIR GARY STEVENS asked if there was objection and there was
none. He stated he would hold proposed amendment 2 until it
could be discussed further.
MR. LARKIN advised that proposed amendment 2 is a clarification
requested by both DOT and Federal Highway Administration. It
states the Legislature's intent that political signs on private
property are not providing an opportunity for indirect
commercial advertising.
He reported the sponsor supports that proposed amendment.
CHAIR GARY STEVENS replied the committee would hold that until
another hearing.
There were no further questions or comments.
CHAIR GARY STEVENS held CSHB 230 in committee and adjourned the
meeting at 5:20 pm
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